FEDERAL COURT OF AUSTRALIA

Yang Yu v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1932

YANG YU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD2316 OF 2005

SACKVILLE J

19 DECEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal by the applicant be dismissed.

2.         The applicant pay the respondent’s costs for leave to appeal, including any costs associated with the notice of appeal.

3.         Costs are fixed at $1500.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter, the applicant, as I shall call her, has lodged what is described as a notice of appeal from the judgment of a Federal Magistrate given on 10 November 2005.

2                     In that judgment, the Federal Magistrate refused an application by the applicant to set aside an earlier judgment made on 23 February 2005.  In that earlier judgment, the Magistrates Court had dismissed an application for review of a decision of the Migration Review Tribunal (the ‘Tribunal’).  The Tribunal had affirmed a decision of a delegate of the Minister to cancel the applicant's Student (Temporary) (Class TU) visa.

3                     The decision of the Tribunal was based on the conclusion that the applicant had breached a condition attached to her visa.  The Tribunal found that she had not complied with Condition 8202 because she had failed to achieve a level of academic progress considered to be satisfactory.  The Tribunal took the view that it did not have any discretion to set aside a visa cancellation where there had been a substantiated breach of Condition 8202.

4                     When the matter first was listed for hearing before the Magistrates Court on 23 February 2005, the applicant did not appear.  The Magistrates Court dismissed the application pursuant to the Federal Magistrates Court Rules, r 13.03A(c), which empower the court to dismiss an application if a party does not appear.

5                     The Magistrates Court rejected the application to set aside the earlier judgment on the ground that the application was without merit and had no prospects of success.  The Court also found that the applicant's explanation for her non-attendance at the court hearing was insufficient.

6                     Although the applicant has filed a notice of appeal, the judgment appealed from is an interlocutory judgment:  see Hall v Nominal Defendant (1966) 117 CLR 423, at 440; Dai v Telecommunications Industry Ombudsman [2000] FCA 717, at [6]-[7]; NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659, at [15].

7                     Since the decision of the Magistrates Court is interlocutory in character, the applicant requires leave to appeal:  Federal Court of Australia Act 1976 (Cth), s 24(1A).

8                     In my opinion, the applicant has not demonstrated that the decision of the Federal Magistrate is attended with sufficient doubt to warrant it being reconsidered by an appeal.  The notice of appeal merely asserts that the procedures which were required to be observed in connection with the making of the decision were not followed and that the decision involved errors of law.

9                     The applicant filed written submissions.  However, the written submissions merely address the merits of the Tribunal's factual findings.  There is nothing in the written submissions to indicate that the Magistrate fell into error in refusing to set aside the judgment dismissing the application for judicial review.

10                  It follows that although I am prepared to treat the notice of appeal as an application for leave to appeal, leave to appeal should be refused.

11                  The order I make is that the application for leave to appeal by the applicant be dismissed.  I order the applicant to pay the costs of the Minister of the application for leave to appeal, including any costs associated with the notice of appeal.  I fix those costs at $1500.

Associate:

Dated:              19 December 2005

The applicants appeared in person.